国际贸易实务第10章

单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,Chapter 10,Claims and Settlement,10.1 Background Information,If a complaint or claim has to be made by the buyer, the matter should be investigated and these details should be laid before the party charged. Sometimes, a reference to the previously satisfactory deliveries and services may help to win more sympathetic consideration of the present complaint or claim.,Each party shall appoint an arbitrator within 30 days after receipt of notification from the opposite party and two arbitrators thus appointed shall jointly nominate a third person as an umpire to form an Arbitration Committee.,In China, the arbitration is conducted by the Arbitration Committee of the China Council for the Promotion of International Trade in accordance with the Provisional Rules of procedures promulgated by the said Arbitration Committee.,The decision of the Arbitration Committee shall be accepted as final and binding upon both parties; neither party shall seek recourse to a law court or other authorities to appeal for revision of the decision. Arbitration expenses shall be borne by the losing party.,10.2 Situational Conversation,Section 1: Claim (1),B=Brown; W=Wang,W:,Hello, Mr. Brown, how are you? It is nice to see you again.,B:,How are you, Mrs. Wang? It certainly is a pleasure to see you again here. I hope you had an enjoyable trip from London.,W:,The flight was really long, but it was comfortable so I do not feel very tired.,B:,I am glad that you had a pleasant trip. I hope you are comfortably settled and find things at the hotel satisfactory.,W:,Everything is perfect, thank you. Well, now, Mr. Brown, if you dont mind, Ill get to the point.,B:,Okay. You want to take up the subject of the arbutus, dont you?,W:,Thats right. You see, Mr. Brown, you have probably been advised of the serious damage done to the last consignment of 60 cases of arbutus. Upon its arrival in London on board the S.S. Cornea, it was found, much to our regret, that about 50% of the cases were leaking. Closer inspection by the Health Officers showed that the contents were considered unfit for human consumption.,B:,Just a minute, if you please, Mrs. Wang. Have your people in London discovered what were the exact causes of the leakage? It was rather a singular case, for thousands of tons of this product have been exported and this seems to be the only case of a shipment being damaged en route.,W:,I am sorry I have to say it was not en route. It was definitely damaged prior to loading onto the S.S. Cornea. You may think it a singular case, yet the fact remains that this has made it necessary for us to file a claim on you. Here, Mr. Brown, I have brought along with me the certificate issued by the London Health Office. It speaks for itself. As to the causes, closer inspection and examination by our cargo-handling people revealed that the leakage of juice was brought about damaged tins. They were evidently broken through careless handling while being loaded onto the ships hold in Sydney dock.,B:,As I have said before, the whole business is most unfortunate. We have never come across such a case of damage during loading.,W:,I have to remind you that our terms are CIF port of London. While we have full confidence in your Commodities Inspection Bureau, this is a case that occurred after their sampling and analysis at the factory. And the broken tins through careless handling and deterioration of the contents en route brought about this state of affairs. Now, Mr. Brown, you are well aware that our business has just started this branch of activities and the loses thus sustained will be a blow to this department. I am sure you will think it fair on our part when we suggest that the total value of the parcel should be reduced by 50% and that you should give us an allowance by way of credit for the amount to be set against our future purchases of canned fruits from you.,B:,To be fair to your company, I am directed by my Sydney branch to settle this issue with you amicably on the condition that you give us a certificate issued by your Health Department. Now that this is available, I think everything will be in order.,W:,I am so glad to hear of your ready agreement. Your fairness in business dealing is unsurpassed. Shall we send you a letter confirming this?,B:,As soon as you send us a letter confirming this conversation, well send you a reply immediately.,W:,Thanks ever so much for your cooperation, Mr. Brown. Goodbye.,B:,Goodbye.,Section 2: Claim (2),W:,Mr. Brown, Id like to talk with you about something that is getting to be a problem. Id like, if possible, to see it settled at this meeting.,B:,What is it, Mrs. Wang?,W:,Its about the quality of 300 cartons of dried mushrooms. They reached us two weeks ago, and were immediately examined after they arrived. To our astonishment, about 20% of them were moldy and in many cartons there were even small brownish bugs crawling in and out of the half-eaten mushrooms. We cannot accept them in this state. They are unfit for human consumption. And the Medical Officer of Health has issued a Stop Notice on them.,B:,Is that so? So far we havent had any complaint of this kind. Our mushrooms have enjoyed a good reputation for their superior quality for years. We are really at a loss to understand why your lot was found moldy and worm-eaten. Have you any evidence?,W:,Certainly. Heres a survey report by a well-known lab in London, whose testimony is absolutely reliable.,B:,Though everything may be as you say, there are many factors involved. Whats more, your surveyors have not mentioned any cause for the damage.,W:,The mushrooms were packed in small one pound plastic bags, sixty of these bags to a carton. It is stated on the surveyors report that external conditions of goods at the time of survey are all sound and intact. So it is obvious the cause of the damage is that the mushrooms were not completely dried before packing.,B:,As you know, before shipment, the Commodity Inspection Bureau inspected the goods in question. They concluded that the goods were well dehydrated from fresh and choice material and up to standard for export.,W:,I think the Inspection Bureau at your end, when effecting inspection, only selected a few package at random,these happened to be up to the standard. The part that was not dried properly, most probably, escaped from their attention. As the amount in question is only 20% of the whole shipment, I think it is only reasonable that you should compensate us for the loss.,B:,The inspection certificate, which is based on a random selection of 20% of the consignment as weve agreed on beforehand, is considered final and binding upon both parties. We do not accept any claims for compensation for loss incurred in transit, because you bought the goods at FOB Houston and on shipping quality, not on landed quality. Your claim, in our opinion, should be referred to the insurance company, as the mishap occurred after shipment.,W:,Weve already got in touch with the underwriter. But they have refused to accept any liability. They attributed the accident to the effects of dampness during the long sea voyage.,B:,Thats a matter over which we could exercise no control, then. Im afraid I have to insist that you approach the insurance company for settlement, that is, if you have covered this risk in your coverage.,W:,To my regret, we failed to cover contamination. This is an unfortunate oversight on our part and a lesson to us.,B:,Otherwise the insurance company would no doubt have entertained your case.,W:,Well, live and learn. It seems well have to waive the claim.,10.3 Email Communication,Letter 1: Claim for Inferior Quality,Dear Sirs,The goods you sent to us are not in conformity with quality of the contract and made us lose a lot of money. We feel that the percentage of the goods of inferior quality was too high. So asking for that you should fix up the problems and make it up to us, making amends for the losses by replacing all of the inferior products, and paying for the business we have lost.,Yours friendly,Letter 2: Rejecting the Claim (Repudiation of Claim),Dear Sirs,We are in receipt of your letter of Oct. 28th, 2011 together with the enclosures.,Upon examination of the paper, we regret that we cannot see way to entertaining your claim on the following grounds:,1. You failed to apply to our claims settling agents for a survey to be held in Hamburg, the final destination named in our insurance certificates.,2. You did not apply in time to the carriers for a joint survey of the goods thus prejudicing our right of recovery from them.,The relative documents are returned herewith.,Yours friendly,Letter 3: Proposing Settlement by Arbitration,Dear Sirs,I tell you regretfully that no settlement can be reached for the disputes through so many negotiations, because there are many disputes that cannot be settled. But we must let our profits out of damage, and decrease the loss. Therefore, for the sake of settling those problems, we suggest that those disputes be submitted for arbitration according to the contract.,Yours friendly,Letter 4: Agreeing to Pay the Claim,Dear Sirs,We are in receipt of your letter of Jan. 3rd, 2011 claim No. PLCO792 with enclosures, in regard to a claim for damage to the shipment covered under the above policy.,Having examined the supporting documents forwarded by you, we agree to pay the amount of USD 1, 653 inclusive of your surveying and claim settling fees in settlement of this claim and have sent you a mail transfer for the above amount through the Banking Department of Bank of China, Beijing.,Kindly settle the claim with the consignees and return to us the enclosed receipt and subrogation form upon completion by them.,Yours very truly,Letter 5: Lodging a Claim with Carrier,Dear Sirs,We enclose herewith our statement of claim No. 222 together with the relevant supporting documents in respect of damage to the above goods covered under our above certificate.,You will note from the enclosed survey report that the damage is attributed to rough handling whilst the goods were in your custody. As there are no adverse remarks on the Bill of Lading, you should have delivered the packages in good condition as they were at the time of shipment.,Unfortunately, you have failed to do so, and therefore, are entirely responsible for the damage for an amount of RMB 2,500 on invoice value basis.,We trust you will give our claim your prompt attention and affect your remittance in full settlement.,Yours faithfully,10.4 Practical Skills,Skill 1: Explanatory Notes on Technical Terms,1. claim,n.,索赔，赔偿要求,v.,索赔，要求赔偿,(1) lodge a claim against sb. for sth.,意为向某人就某事提出索赔，,lodge,一词可换为,raise,，,file,，,put in,，,make,，,issue,，,lay,，,register,，,render,，,enter,，,bring up,，,set up,。,a. We shall raise a claim against the PICC for the goods damaged during transit.,b. We have filed a claim against you for the short delivery of 12 metric tons.,(2) claim (a compensation of) from sb. for sth.,向某人就某事提出索赔,(,的赔偿,),We should claim US $ 2,540 from you for the loss caused by improper packing.,2. presume,vt,.,推测，认为,(1) Since you did not reply to our fax in time, we presume you are not interested in the offer.,(2) We presume (that) they have met your requirements.,(3) A signed invoice presumes receipt of the shipment.,3. Application for Arbitration,The Plaintiff: M. M. Corp.,Address: B city, China,The Defendant: V. V. V. Co., Ltd.,Address: . city.,4th May, 2012,Statement of Facts:,This dispute existing between the Plaintiff, M. M. Corp. and the Defendant, V. V. V. Co., Ltd. was brought about by the Defendants failure to commit themselves to the contracts 470E and 471E concluded on the 14th May, 2011 for the supply of 8,000 metric tons of Aluminum Ingots.,The claim sum by the Plaintiff: 748,000,The claim foundation by Plaintiff: the contract 470E of Aluminum Ingots (the purity is 99.5%), the unite price is 150 per metric ton, the general weight is 6,000 metric tons.,The Plaintiff hereby claims to be compensated by the Defendant not only with an amount of losses totaling 748,000 (in Pound Sterling of Seven Hundred and Forty Eight Thousand), caused by the Defendants failure to execute the contracts concluded, but also with all the expenses arising from this arbitration.,Enclosed here with this form of Application for Arbitration, please find an amount for service charge covering 3,740 (in Pound Sterling of Three Thousand Seven Hundred and Forty), equivalent to the Chinese currency RMB 15,729 (Fifteen Thousand Seven Hundred and Twenty Nine Yuan), paid in advance in compensation for the cost of arbitration called for by Clause No. 6 of Rules of the F. T. Arbitration Commission.,Enclosures:,Statement of Appointing Arbitrator of F. T. Arbitration Commission to appoint an arbitrator for the Defendant.,M. M. Corp.,Enclosure 1,Statement of Appointing Arbitrator,This serves to authorize the Chairman of the F. T. Arbitration Commission to appoint an arbitrator on behalf of this Corporation to settle the dispute existing between the Plaintiff, M. M. Corp. and the Defendant, V. V. V. Co., Ltd, concerning the Defendants failure to meet their obligation under contracts concluded for the supply of 8,000 metric tons of Aluminium Ingots.,Should the Defendant fail to appoint an arbitrator within the time specified by the Rules of F. T. Arbitration Commission, this Corporation would then ask the Chairman.,Skill 2: Useful Expressions,(1) Yet the latest lot, to our regret, is too serious to be overlooked so that we find we must file a claim on you.,(2) Heres a survey report by a well-known lab in Singapore, whose testimony is absolutely reliable.,(3) The case may then be submitted for arbitration.,(4) In China, the Arbitration Commission of the CCPIT will execute the arbitration case.,(5) The verdict of the arbitration shall be accepted as final and binding upon the two parties.,(6) Upon opening the case we found it contained completely different articles, and we presume that a mistake was made and the contents of the case were for another order.,(7) We regret to inform you that the goods shipped per S. S. Dragon arrived in such an unsatisfactory condition that we cannot but lodge a claim against you.,(8) Any complaint about the quality of the products should be lodged within 15 days after their arrival.,(9) After reinspection we found that the quality of the goods was not in conformity with the contract stipulations.,(10) In view of the above, we regret that we have to return the defective goods to you for replacement at your expense.,(11) We regret to tell you that your claim cannot be entertained as it is raised far beyond the time limit stipulated in the contract.,(12) In the spirit of goodwill and friendship we agree to accept all your claims.,第十章,索赔与理赔,一、背景知识,如果买方提出索赔，必须对有关问题进行详细调查，并将详情告知卖方。有时也应援引以往买方满意的交货和服务案例，这样会有助于在当前的投诉和索赔中赢得同情分。,在收到对方通知之日起,30,日内，各方应指定一名仲裁员。被指定的两名仲裁员应联合选择第三者作为首席仲裁员，组成仲裁委员会。,在中国，仲裁由中国国际贸易促进委员会对外贸易仲裁委员会按照其公布的仲裁程序暂行规定进行。,仲裁委员会的裁决为最终裁决，对双方均有约束力。双方当事人都不得向法院或其他机关提出变更的要求。仲裁费用由败诉方负担。,二、情景对话,对话,1,：索赔,(1),B=Brown,；,W=Wang,W,：,布朗先生，你好。很高兴再次见到你。,B,：,王小姐，你好。很荣幸在这里又见到你。希望你从伦敦来一路旅途愉快。,W,：,飞行时间虽长，但客机非常舒适，所以也不觉得很累。,B,：,我很高兴你旅途愉快。希望你住得舒适，对旅馆设施觉得满意。,W,：,谢谢你，一切都很好。噢，布朗先生，要是你不介意的话，现在咱们就开始谈谈业务吧。,B,：,好，你想谈谈杨梅的事，对不对？,W,：,对。布朗先生，也许你已经知道最后一批,60,箱的杨梅严重损坏的情况。“柯娜”轮一到达伦敦的时候，我们就遗憾地发现其中有一半左右的箱子渗漏。经卫生检疫局官员仔细检查，认为内装食品不可供人们食用。,B,：,王小姐，请稍等。请问伦敦的人有没有发现渗漏的确切原因？这件事只是个例，我们已经出口好几千吨了，在中途损坏还是头一回。,W,：,很抱歉，我得说明，损坏不是在运输途中发生的。很明显，损坏是在装上“柯娜” 号轮前发生的。你可能认为这事是头一回，可事实不得不让我们向你们提出索赔。布朗先生，这儿是伦敦卫生检疫局官员签发的证书，上面写得一清二楚。至于原因，我们经办装卸的人仔细检查，结果发现果汁渗漏的原因是锡罐被损坏了。很明显是在悉尼码头装船时，因搬运疏忽大意而造成锡罐受损的。,B,：,我刚才讲过，整件事实在是很不幸。我们从未遇到过罐头在装船时发生如此损坏的情况。,W,：,我不得不提醒你，我们的条款是伦敦到岸价。虽然我们很信赖你们的商品检验局，可是损坏是在工厂抽样化验之后发生的。事情发展到这个地步是由于搬运不慎导致锡罐破裂，使食品中途变质。布朗先生，你很清楚我们才开始经营这项业务，蒙受这样的损失对业务部门是一个打击。 我们建议这批货从总价中削减,50%,，并给予我们补贴，此款项就用于将来向你们订购罐头水果时冲销，我相信你会赞同这种公平的做法。,B,：,悉尼分公司派我来和你们公平友好地解决这件事，前提条件就是把你们卫生部签发的证书给我们。现在证书已经有了，我想事情都会解决的。,W,：,听到你这么痛快地同意了，我很高兴。办理业务这么公平，真是无法比啊。我们将寄信让你们确认，好吗？,B,：,我们一旦收到你们的信确认此次谈话，就会立即回复。,W,：,万分感谢你的合作。布朗先生，再会。,B,：,再见。,对话,2,：索赔,(2),W,：,布朗先生，我想和你谈谈一件比较麻烦的事情。如果可以的话，我想在这次会议上解决。,B,：,王小姐，是什么事？,W,：,是关于,300,箱干蘑菇质量的问题。两周前到的货，我们当即进行了检查。令我们吃惊的是，大约,20%,的干蘑菇已发霉，甚至在许多箱内有褐色小甲虫爬出爬进，有一半蘑菇已被吃掉。这样的货物我们是不能接受的。它们不宜被人们食用。医药卫生官员对这些货物发出了“停售通知”。,B,：,有这么一回事？我们还从未收到过这样的抱怨呢。多年来，我们的蘑菇因质量好而享有盛誉。这真叫我们难于理解，给你们的那批货怎么发霉了，甚至被虫咬了。你有什么证据吗？,W,：,当然有。这是伦敦一家有名的实验室的检验报告，他们的证词绝对可靠。,B,：,虽然事情可能像你所说的那样，但它牵涉到很多因素。况且，你方检验员并没有提及造成损坏的任何原因。,W,：,蘑菇每磅装一小塑料袋，每,60,袋装进一只木箱。检验员的报告中说，检验时货物的外包装都是完好无缺的。所以很明显，造成损坏的原因是蘑菇在包装前没有彻底干透。,B,：,如你所知，这批货在装船前由商品检验局检验过。他们的结论是，此货已很好地除去了水分，品质上等，达到出口的标准。,W,：,我想你方商检局进行检验时，只随意地挑了几包，而这几包又恰巧达到了标准。而没达到干燥程度的那部分可能就没被他们注意到。由于波及的数量只是整批货的,20%,，我想你方应该赔偿我们的损失才算合理。,B,：,我们事前已有协议，任意抽取整批货的,20%,进行检验，其检验证明最终对双方都具有约束力。因为你买的这批货是休斯敦港船上交货价，以装船质量而不是以到岸质量为准，任何因运输途中产生的损失要求的赔偿，我们都不予接受。我们认为，你们应该要求保险公司索赔，因为损失发生在装船后。,W,：,我们已联系过保险商，但他们拒绝承担任何责任。他们将此事故归咎于长途海运中受潮。,B,：,那种事我们可控制不了。我们恐怕还得坚持这一点，就是你们联系保险公司要求解决，如果你们投保了这种险的话。,W,：,遗憾的是，我们没有投保“污染险”。很不幸，这是我方的疏忽，也是一个教训。,B,：,不然的话，保险公司毫无疑问将会接受索赔的。,W,：,是的，活到老，学到老。看来，我们只好放弃索赔了。,三、邮件往来,邮件,1,：对质次的索赔,敬启者：,贵公司运来的货物与合同规定的质量不相符合，使得我公司亏了很多钱。我们觉得劣质货物的比率太高。因此，请您必须解决这一问题，并补偿我方的损失。同时，要求贵公司更换所有的劣质产品，并赔偿我方这一次丢掉的生意，以弥补损失。,敬上,邮件,2,：拒绝索赔,敬启者：,贵公司,2011,年,10,月,28,日来函及附件收悉。,经过审核有关单证后，本公司非常抱歉地告知，不能接受贵公司的索赔，理由如下：,1.,贵公司未在保单载明的目的港汉堡向我们的代理人申请检验。,2.,贵公司未及时向承运人申请对货物进行联合检验，从而使我们丧失向承运人追偿的权利。,随函退回有关单证。,敬上,邮件,3,：建议提交仲裁解决,敬启者：,我遗憾地告诉您，经过多次的协商，仍未就索赔处理事宜达成一致，因为有许多争议未能解决。然而，我们必须保证我方的利益，减少我方的损失。因此，为了使问题得到解决，遵照合同中规定的仲裁条款，我方建议提交仲裁。,敬上,邮件,4,：同意赔款,敬启者：,关于上述保单项下货损索赔事宜，你们,2011,年,1,月,3,日第,PLCO792,号来函及附件收到。,经审核你们送来的证明单证，我们同意赔付,1653,美元，包括你们的检验费和核赔费，以结此案，并已通过北京中国银行营业部将上述款项邮汇给你们。,请将赔款付给收货人，并将本函所附收据和权益转让书交由收货人签字后退给我们。,敬上,邮件,5,：向承运人提出索赔,敬启者：,我们随函附去第,222,号赔款计算书和关于上述保单项下承保货物损失的有关证明单证。,从所附的检验报告中可以看出，货物的损失发生在你们保管期间，原因是野蛮操作。鉴于提单是清洁提单，你们所交付的货物也应完好如初。,遗憾的是，你们并未这样做。所以，按发票价值计算，你们应对人民币,2500,元的损失负全部责任。,我们确信，你们将会对我们提出的索赔给予及时考虑，并汇付全部赔偿金。,敬上,四、实用技能,技能,1,：专用术语解释,1. claim,n.,索赔，赔偿要求,v.,索赔，要求赔偿,(1) lodge a claim against sb.for sth.,意为向某人就某事提出索赔，,lodge,一词可换为,raise,，,file,，,put in,，,make,，,issue,，,lay,，,register,，,render,，,enter,，,bring up,，,set up,。,a.,对于货物在运输途中损坏，我们将向中国人民保险公司提出索赔。,b.,我们已向你方提出短交,12,公吨的索赔。,(2) claim (a compensation of) from sb. for sth.,向某人就某事提出索赔,(,的赔偿,),我们必须为由于不良包装所造成的损失向你方索赔,2540,美元。,2. presume,vt,.,推测，认为,(1),由于未及时答复我方传真，我们认为你们对此报盘不感兴趣。,(2),我们推测他们已经满足你们的需求。,(3),经过签收的发票可表明运去的货物已收到。,3.,仲裁申请书,申诉人：,M. M. Corp.,地址：中国,B,市,被诉人：,V. V. V. Co., Ltd.,地址： 国 市,事实说明：,本案系,M. M. Corp.(,申诉人,),与,V. V. V. Co., Ltd. (,被诉人,),之间于,2011,年,5,月,14,日签订第,470E,号和第,471E,号合同成交,8000,公吨铝锭，被诉人不履行合约而引起的争议。,申诉人索赔金额：,748 000,英镑,申诉人索赔基础：,第,470E,号合同铝锭,(,纯度,99.5%),单价为每公吨,$152,，总数量为,6000,公吨；,申诉人除要求被诉人赔偿由于被诉人不履行合同义务所造成的损失,748 000,英镑外，并要求被诉人承担由于进行仲裁而引起的一切费用。,现按照,F. T.,仲裁委员会的仲裁规则第六条规定，附上仲裁费预付金计,3740,英镑，折合人民币共,15 729,元，请查收。,附件,指定仲裁员的声明,兹委托,F. T.,仲裁委员会主席在我公司,(,申诉人,),与,V. V. V. Co., Ltd. (,被诉人,),之间关于被诉人未履行,8000,公吨铝锭合约争议案中，代我公司指定仲裁员一人。,如果被诉人没有在仲裁程序规定的期限内指定仲裁员，我公司要求,F. T.,仲裁委员会主席代被诉人指定仲裁员一人。,M. M. Corp.,2012,年,5,月,4,日,技能,2,：语言技巧,(1),但令我方遗憾的是最近一批货情况非常糟糕，我们实在不能等闲视之，必须向你方提出索赔。,(2),这是由新加坡的一个著名实验室提供的一份检查报告，证据是绝对可靠的。,(3),这一事件可以通过仲裁解决。,(4),在中国，中国国际贸易促进委员会下属的仲裁委员会会受理仲裁案件。,(5),仲裁做出的裁决应视为最终裁决并对双方均具有约束力。,(6),开箱时，我们发现所装的货物与订单规定的不同，我方估计是贵方出了错误，此箱货物系另一张订单的。,(7),我方很遗憾地通知贵方：鉴于“龙”号轮运达的货物状况令人非常不满意，我方只能向贵方提出索赔。,(8),任何有关产品质量的投诉，必须在货物到达后的,15,天内提出。,(9),我方在复验后发现：货物质量与合同规定不符。,(10),鉴于上述情况，我方只能遗憾地将劣质的货物发还贵方调换，费用由贵方负担。,(11),我方很遗憾地告知贵方：贵方的索赔因为远远超过了合同规定的索赔期限，而不能被接受。,(12),为了信誉和友谊，我方同意接受贵方的全部索赔要求。,